Spoliation occurs when evidence that should have been preserved is lost, altered, or destroyed under circumstances a court finds culpable. As client communications have migrated away from email and into messaging platforms that delete by default, litigators face increased risk of sanctions or dismissal.
A preservation plan should reflect how your client actually communicates. Instructions limited to email and shared files leave unanswered questions about messaging apps and personal phones that might be set to delete communications after a set number of days. Address those sources during the first preservation discussion, rather than waiting until document collection begins.
How Disappearing Messages Threaten Preservation
Ephemeral messaging refers to communications designed to disappear after a set period or another event, such as viewing. Not every platform is designed the same way. Signal and WhatsApp offer disappearing-message settings, while Snapchat applies retention rules that vary by content and conversation settings.
Default texting apps on smartphones have their own ways of clearing message history. Apple’s iMessage allows iPhone users to automatically remove messages and attachments after 30 days or one year. When Messages in iCloud are enabled, deletion can extend across connected devices.
While Google Messages (the Android default) does not automatically delete texts, Samsung Messages can be set to delete the oldest texts in a conversation once it exceeds 1,000.
The preservation duty itself is not new, but it has become increasingly important in family law cases, where private communications through personal phones and messaging apps are often the most critical evidence. The Department of Justice and Federal Trade Commission updated their preservation guidance to address collaboration tools and ephemeral messaging. The agencies described the change as reinforcing existing obligations, not creating a separate exemption or legal standard for newer platforms.
When Does the Duty to Preserve a Message Begin?
In federal litigation, the preservation duty generally arises when litigation is reasonably foreseeable. Demand letters, preservation requests, and other developments can provide notice that relevant information should be retained before an official complaint is filed. The timing depends on the circumstances known to the party.
Evaluate the chain of events and document your assessment, considering any forensic collection methods that may be necessary. Waiting for a formal discovery request can leave a gap between when the obligation to preserve evidence arose and when you actually acted on it.
Communicating when the preservation duty is expected to begin generally falls on the party who will later rely on that evidence. In Willmore v. Savvas Learning Company LLC, a federal court denied spoliation sanctions because the moving party had not shown that the preservation duty arose before the information was deleted. The case demonstrated why a loss must be tied to an existing duty.
A Litigation Hold Must Address Ongoing Deletion
The antitrust case against the Google Play Store illustrates the shortcomings of issuing hold notices without sufficient instructions to implement it. In this scenario, Google left employees largely responsible for deciding which chats to retain while messages with history turned off disappeared after 24 hours. The District Court for the Northern District of California found Google’s approach resulted in employees misunderstanding what they needed to preserve.
In its sanctions ruling, the court directed Google to cover reasonable attorney fees and costs related to the preservation dispute. It criticized how Google prioritized preservation and its failure to suspend their deletion policy.
For your own records, assign responsibility for checking deletion settings. Where an organization can centrally preserve covered communications, evaluate that option rather than relying entirely on individual users. Where settings remain under the client’s control, provide instructions and verify completion.
How Courts Evaluate Sanctions for Lost Messages
Federal Rule of Civil Procedure 37(e) governs the loss of electronically stored information in federal civil cases. Its threshold requirements include information that should have been preserved, loss caused by a failure to take reasonable preservation steps, and an inability to restore or replace the information through additional discovery. State-court requirements should be checked separately.
The rule then separates remedies according to the findings:
Under Rule 37(e)(1), prejudice permits measures no greater than necessary to cure the harm
Under Rule 37(e)(2), an intent to deprive another party of the information’s use permits adverse presumptions, adverse inference instructions, dismissal, or default judgment
Adverse inference sanctions therefore require more than proof that messages are missing. Negligence, including gross negligence, does not satisfy the intent requirement for those remedies.
Recent Court Rulings on Spoliation of Evidence
In Google’s case, a pretrial order authorized a permissive adverse inference instruction after findings of intentional and prejudicial failure to preserve chats. This allowed, but did not require, the jury to draw an unfavorable inference. The court also permitted questions about witnesses’ chat-retention practices.
Other recent spoliation claims have been met with even harsher punishments.
In Jones v. Riot Hospitality Group LLC, the Ninth Circuit affirmed dismissal in March 2024 after finding that the plaintiff intentionally deleted relevant texts and coordinated deletion with others. The court explained that intent can be established through circumstantial evidence, including selective preservation, deletion timing, and affirmative steps to destroy information. Although the case involved deleted texts rather than an automatic timer, its reasoning applies to evaluating explanations for missing messages.
In Pable v. Chicago Transit Authority, the Seventh Circuit affirmed dismissal and monetary sanctions in July 2025. The record included missing Signal conversations, activating disappearing messages after the preservation duty arose, changing explanations, and discovery misconduct. The decision did not treat Signal use alone as grounds for dismissal.
The affirmed awards included $75,175.42 under Rule 37(e), divided equally between the plaintiff and his attorney. Other awards addressed counsel’s separate discovery conduct. The appellate court held that Rule 37(e)(1) permits fees and costs when reasonably necessary to cure prejudice, including expenses incurred litigating the spoliation itself.
Write Messaging-Specific Preservation Instructions
A useful litigation hold should identify the covered communications and give recipients concrete steps to follow. Do not assume clients will interpret “documents” or “electronic records” to include app conversations, voice messages, and attachments.
The following language can be adapted after counsel defines the hold’s scope:
Preserve all messages, group chats, attachments, and voice messages within the subjects and dates described in this notice, including covered communications on personal devices and accounts. Suspend automatic deletion for those communications. Contact the designated preservation coordinator immediately to preserve messages already subject to expiration.
Do not delete covered conversations, uninstall relevant apps, reset or replace devices, or move covered communications to a disappearing message channel without counsel’s written instructions. Report missing messages, inaccessible accounts, and technical problems immediately. These instructions remain in effect until counsel releases the hold in writing.
Add the coordinator’s name, contact information, and a deadline for acknowledging receipt. Provide app-specific instructions through a durable communication channel rather than sending the only copy through a conversation that may expire. Discuss the instructions with the client and ask the client to explain which actions have been completed.
Address recipients to send future communications and existing records through a counsel-approved, retained channel for covered discussions while the hold remains active.
Preserve Existing Messages Before Their Timers Expire
Changing a setting does not necessarily protect messages already in a conversation. Signal’s timer changes apply only to messages sent after modifying the setting. Turning disappearing messages off is therefore not a substitute for assessing existing messages that remain subject to expiration.
Snapchat makes a similar distinction: new messages follow the changed retention setting, while older messages retain the settings that applied when they were sent. Your preservation process should address existing content and future communications separately.
Document the source device, collection date, person performing the work, and method used. The National Institute of Standards and Technology’s mobile-device forensics guidance emphasizes device-specific acquisition methods and documentation that tracks evidence handling.
Verify Compliance Throughout the Hold
Treat digital evidence preservation as an ongoing assignment with named responsibilities. Use a verification checklist tailored to the client and the scope of the dispute:
Identify the people, devices, accounts, and group conversations likely to contain covered communications
Review existing conversations as well as default settings for new chats
Record deletion settings, the date of each preservation change, and who made it
Confirm that collected material includes the intended conversations and attachments before reporting collection as complete
Require notice before device replacement, account closure, employee departure, or changes to communication platforms
Follow up with nonresponders and revisit preservation when additional people or information sources become relevant
Keep the acknowledgment separate from the verification record. A signed response confirms receipt; your follow-up should document the actions taken and unresolved technical issues. Assign someone to resolve each issue rather than leaving it in an email exchange.
When messages are reported missing, establish what was lost and when. Assess whether other participants, retained exports, backups, or additional discovery can supply the information, without assuming that any particular source will contain a replacement. Rule 37(e) requires consideration of restoration or replacement before its remedies apply.
Coordinate Litigation Support for Evidence Disputes and Case Strategy
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